Gibbons v. Missouri Pacific Railway Co.

Ellison, J. The principle which should govern . this case will be found in the opinion delivered in Leisse v. Railroad, 2 Mo. App. 105; s. c., 72 Mo. 561. [151] But it is contended here as a distinction between this and the case cited that here the proceedings were not abandoned. That they were re-instituted and prosecuted to a final condemnation of the property. In this respect this case does differ from the one cited, but the court instructed the jury that, if they believed from the evidence that the damages sustained by plaintiff in the first proceedings were not included in the damages assessed in the second, the second proceeding was neither a" bar nor defense to this action. This instruction was properly given, 'as the plaintiff had the unquestioned right to show by oral testimony that the present claim was not adjudicated in the second proceedings. This, however, as I understand it, does not include the full scope of defendant’s contention. It is further urged, since there was a second proceeding, begun even before the first was dismissed, that there was no abandonment, and that unless there is a final abandonment of the proceedings no damages as claimed here can follow. We do not think this position sound. Defendant was liable for damages arising by reason of the'first proceedings and the prosecution of the second will not absolve it. Though ordinarily it would be presumed that such damage was included in the assessment under the second, yet this presumption is not conclusive as claimed by defendant. Whether such was the fact in this case was submitted to the jury who have found for the plaintiff. We, therefore, hold that where proceedings for condemnation are dismissed, notwithstanding they may have been re-instituted, the party instituting them will' be liable in an action for damages pccasioned by the first unless such damage was adjudicated in the second; and that whether they were so adjudicated is a question which may be tried as was done in this case by submitting it to the jury on the evidence adduced. Brown [152] v. Weldon, 34 Mo. App. 378; Snodgrass v. Moore, 30 Mo. App. 232; State v. Orahood, 27 Mo. App. 496; Lightfoot v. Wilmot, 23 Mo. App. 5. II. Plaintiff ’ s attorney’s fee in the first proceeding was a proper element of damage, provided it was a reasonable one, and we are inclined to the opinion, in the absence of evidence to the contrary of that offered by plaintiff, that the jury were authorized to find the fee in question was reasonable. No testimony of lawyers was introduced to show the fee was reasonable, nor do we think it absolutely necessary that it should have been done. The plaintiff testified that the attorneys charged him three hundred dollars, to which amount he objected as being unreasonable, but that he finally agreed on two hundred and fifty dollars. Considering that juries are not confined to the testimony of experts in fixing the value of professional services we think the evidence adduced was sufficient to go to the jury. Head v. Hargrave, 105 N. S. 45; City of Kansas v. Street, 36 Mo. App. 666. The instructions for defendant were more than, in our opinion, it was entitled to, but of this it cannot complain. The judgment is- affirmed. All concur. ■